Shaw v. Saxman

Mr. Justice Robb

delivered the opinion of the Court:

It is not questioned that appellant and Shaw were married as claimed, nor could it well be, for the evidence on this point is overwhelming, as was found by the learned trial justice. The court further found that the parties never were divorced, and in that finding* we concur. See Smith v. Fuller, 138 Iowa, 91 , 16 L.R.A.(N.S.) 98, 115 N. W. 912 . It necessarily follows, therefore, that appellant is the widow of Shaw. The learned trial justice disposed of the case upon the theory that the clause in the agreement of separation to the effect that the parties were not to disturb each other referred to “property matters,” and that inasmuch as appellant for fifty years had given no indication that she intended to disturb Shaw in his property rights “or to treat herself as having any right in his estate,” she now is estopped to asseid such a right.

Agreements of separation not made in contemplation of a future possible separation will be recognized and enforced if the provision for the wife’s support is reasonable and fair. Cronan v. Cronan, ante, 343, present term and cases there cited. Inasmuch, however, as such an agreement does not dissolve the marriage relation, it does not bar the wife from her share in the husband’s estate, unless it expressly purports to do so. Ireland v. Ireland, 43 N. J. Eq. 311, 12 Atl. 184 ; Moon v. Bruce, 63 S. C. 126, 40 S. E. 1030 ; Walsh v. Kelly, 34 Pa. 84 . Even a divorce a mensa et thoro does not deprive a widow of her dower or reasonable part of the estate of her husband. Such a decree operates merely to legalize the separation of the parties and makes provision for the wife so Ipng as the separation shall con *532 tinue. Upon the death of either that provision ceases. Hokamp v. Hagaman, 36 Md. 511, 517 ; 2 Bishop, Marr. & Div. ¶ 726.

This brings us to an examination of the agreement of separation here involved. This agreement was made in New'Jersey and is governed by the law of that jurisdiction. There such an agreement will be countenanced and enforced “only in a case which, after a cautious examination of all the circumstances which surround and enter into the agreement, appears to be fair to the wife, and also to be supported by some equity in favor of the husband or those who claim under him.” Ireland v. Ireland, 43 N. J. Eq. 311, 12 Atl. 184 . Tested by this rule, no court would enforce the agreement in the present case, even though it should be given the interpretation placed upon it by the learned trial justice. Shaw, without cause, had deserted his wife and had assumed meretricious relations with another woman. He was under both a legal and a moral obligation to support his wife and children, and this obligation he recognized in the agreement. But he failed to fulfil his promise, and his wife was compelled to support herself and her children without his aid. The deed referred to in Shaw’s letter to his wife formed no part of the consideration for this agreement, because it was executed while the parties were living together, in evident contemplation of the hazards which Shaw was to undergo through his enlistment, and was not even mentioned in the agreement. No court, therefore, would permit either Shaw or those who claim under him to take advantage of such agreement. To do so would be to reward duplicity and breach of duty.

But we find nothing in the terms of this agreement indicating that it was intended to covqr anything more than the relation of the parties during life. Appellant agreed that if Shaw would contribute towards her support and the education of their children, she would not disturb him. She did not agree that she would not disturb his estate, and to read such a provision into the agreement as a waiver of her rights would be to reverse the presumptions. We are clearly of the view, therefore, that this agreement did not constitute a waiver of appellant’s right to participate in her husband’s estate.

*533 The next question is whether appellant is estopped by her conduct from claiming the rights of a widow in the estate of her husband. If the rule of estoppel in pais is to be invoked here, it must be upon the theory that in conscience and honesty this widow should not now be permitted to assert her claim. Bowen v. Howenstein, 39 App. D. C. 587, Ann. Cas. 1913E, 1179. “An estoppel in pais is sometimes said to be a moral question. Certain it is that to the enforcement of an estoppel of this character, such as will prevent a party from asserting his legal rights to property, there must generally be some degree of turpitude in his conduct which has misled others to their injury.” Henshaw v. Bissell, 38 Wall. 255 , 271, 21 L. ed. 835, 840. Thus, where a duty devolves upon one to speak and he remains silent to the injury of another, he will not be permitted afterwards to take advantage of a situation for which he was responsible. Consolidated Fruit Jar Co. v. Wright, 94 U. S. 92 , 24 L. ed. 68.

Turning now to the facts in the present case, what do we find ? A wife was deserted by her husband without cause and left with two small children to rear and educate. It will not be questioned that the burden cast upon her was a grievous one. Apparently realizing the futility of further efforts to induce her husband to return to her and her children, she attempted to obtain some contribution for their support, but her efforts were rewarded with little more than a naked promise. Instead of returning home, her husband, accompanied by a woman who must have known he was married, came to Washington and made this his home during the rest of his life. What was appellant to do ? Her homo was in New' Jersey, and there she remained throughout all the years of her husband’s infidelity. She was among her friends, where it was easier for her to gain a livelihood for herself and children, and her conduct throughout always was consistent with the fact that she was the deserted wife of Shaw. She always claimed to be his wife, and never made any representation inconsistent with that claim. We know of no rule making it incumbent upon a deserted wife to follow a husband and his paramour into another jurisdiction, to which they have fled, and there proclaim her own humiliation and their miscon *534 duct. Nor was it appellant’s duty to follow this man through his misguided career, that she might either bring him to justice or warn those whom he sought to deceive. The woman whom he brought here from New Jersey lived until 1890, and there is no evidence that appellant knew of his subsequent misconduct in time to frustrate it. In other words, there is no evidence that, by word or deed, she lead the two women with whom her husband went through a marriage ceremony to believe that he was free to marry. Since it was not her duty to subject her husband to espionage, and she was in no way responsible for his deception of .the two women he attempted to marry, there are no elements of estoppel present. In Dunn v. Portmouth Sav. Bank, 103 Iowa, 538 , 72 N. W. 687 , a husband took his children, abandoned his wife, and soon thereafter went through a marriage ceremony with .another woman, with whom he lived for thirty years. The legal widow claimed dower, and it was sought to estop her for the reason that, after learning of her husband’s pretended márriage, she had taken no steps to enforce her rights during his life. It further appeared that after this attempted marriage his legal wife interviewed him and, upon being told what he had done, expressed the hope that “he would do well.” The court remarked that “there was little else for her to do,” and that “the claim of estoppel has no substantial support in the record.” Here the wife’s conduct was consistent throughout, and there was no failure of duty on her part. We hold, therefore, that she is not estopped to assert her claim.

It is assigned as error that, the court did not award appellant one half of the personal estate of her deceased husband, the contention being that, she is entitled to one half instead of one third. As the court ruled that she was estopped to claim anything, it is apparent that there has been no ruling on this question, and hence that the assignment is premature. However, we may remark that, in our view, sec. 375 of the Code [31 Stat. at L. 1249, chap. 854], to the effect that if there be a widow and a child or children, the widow shall have one third only of the estate, clearly is applicable. The other assignments of error are premature and will not be considered ... ... ... ... ...

*535 The decree is reversed, with costs, and the cause remanded for further proceedings. Reversed and remanded.